United States v. Duran, Criminal No. 14–392(2) ADM/SER.
| Decision Date | 19 May 2015 |
| Docket Number | Criminal No. 14–392(2) ADM/SER. |
| Parties | UNITED STATES of America, Plaintiff, v. Jesus Rubio DURAN, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Thomas Calhoun–Lopez, Esq., Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, for Plaintiff.
Kirk M. Anderson, Esq., Anderson Law Firm, PLLC, Minneapolis, MN, for Defendant.
This matter is before the undersigned United States District Judge for a ruling on Jesus Rubio Duran's ("Duran") Objections [Docket No. 86] to Magistrate Judge Steven E. Rau's April 21, 2015 Report and Recommendation [Docket No. 85] ("R & R"). In the R & R, Judge Rau recommends denying Duran's Motion to Suppress Physical Evidence [Docket No. 51] and Motion to Suppress Statements [Docket No. 52]. After a thorough de novo review of the record and for the reasons stated below, Duran's Objections are overruled and Judge Rau's R & R is adopted.
On November 5, 2014, Officer Christian Freichels ("Officer Freichels") and other law enforcement officers executed search warrants at two separate addresses in Maplewood, Minnesota, one on Nebraska Avenue and one on Larpenteur Avenue. At the Nebraska Avenue address, a large amount of currency, drug ledgers, and a small amount of drugs was discovered. At the Larpenteur Avenue address, officers found a digital scale with methamphetamine residue. While law enforcement officers were searching the Larpenteur Avenue address, Alejandro Reyes–Rojas ("Reyes–Rojas") entered the apartment. The officers believed Reyes–Rojas entered the apartment to retrieve drug proceeds. Reyes–Rojas was driven to the apartment by Rivas.2 After speaking with both Reyes–Rojas and Rivas, officers determined that the men had come from Reyes–Rojas's apartment on McKnight Avenue. Rivas agreed to show the officers where the apartment was located.
After arriving in the vicinity of the McKnight Avenue apartment, Rivas identified a man driving around in the parking lot as someone who was previously inside the apartment. Sergeant Burt Emerson ("Sergeant Emerson"), who was conducting surveillance of the apartment, believed that the individual was either waiting for someone or conducting counter-surveillance.
The officers reported that the occupants of the McKnight Avenue apartment appeared concerned that they were being watched. Earlier, an individual cooperating with law enforcement told Officer Freichels that members of the drug trafficking organization under investigation may try to remove or destroy evidence if they suspected or learned one of their associates was arrested or unreachable. Officer Freichels was concerned that individuals connected to Reyes–Rojas could have learned that he was arrested. Concerned about evidence destruction, Officer Freichels believed time was of the essence and ordered officers to knock at the door of the McKnight Avenue apartment immediately.
At least four officers approached the door of the apartment. The officers were wearing street clothes and vests identifying them as law enforcement. Their badges were also visible. It is uncertain if any of the officers displayed their weapons. One of the officers knocked on the door, which was opened by Duran. At this stage of the investigation, Duran was unknown to law enforcement. Commander Richard Clark ("Commander Clark") asked for permission to enter. In response, Duran turned slightly to the side while raising one arm near his waist. The investigators interpreted this motion as a gesture for them to enter the apartment.
Upon entering the apartment, the officers observed the same individual who had been previously seen circling the parking lot. During the course of a protective sweep, Sergeant Emerson and Commander Clark observed drug materials in plain view. While a search warrant was obtained, Duran and the other occupant were handcuffed. None of the officers conducted any additional searches prior to the warrant being signed.
Officer Freichels executed the search warrant later that day. The search revealed approximately two pounds of methamphetamine. Officer Freichels summoned Officer Aguirre, a Spanish speaking officer, to assist in interviewing Duran in the back bedroom of the apartment. Officer Aguirre read Duran his Miranda rights from a standard DEA card. Duran did not sign a waiver form but he stated that he understood his rights and he agreed to speak with Officer Freichels.
Duran's interview lasted approximately ten minutes. Duran admitted knowledge of the drugs but denied involvement in their sale. Duran did admit depositing money into a Wells Fargo bank account under the direction of Reyes–Rojas. During the interview, Duran was calm; he did not raise his voice or have any emotional outbursts. Officer Freichels described Duran's answers as coherent and believed Duran to be of average intelligence. Officer Freichels did not raise his voice or draw his weapon during the interview. The interview concluded when Duran refused to answer any further questions.
Duran moves to suppress the physical evidence discovered in plain view as a result of the warrantless entry. Without the evidence discovered by the officers in plain view, Duran argues that the search warrant was not supported by probable cause. Duran additionally moves to suppress the statements made to Officer Freichels under the theory that his waiver of his right to an attorney was involuntarily obtained because of the police-dominated environment. In the R & R, Judge Rau recommends denying both motions, concluding that Duran voluntarily consented to the warrantless entry and that his waiver prior to making any statements to law enforcement was voluntary, knowing, and intelligent. Duran now objects to the recommendation denying his motions to suppress.
"A district judge may refer to a magistrate judge for recommendation a defendant's motion to dismiss or quash an indictment or information, a motion to suppress evidence, or any matter that may dispose of a charge or defense." Fed.R.Crim.P. 59(b)(1). In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C) ; see also D. Minn. L.R. 72.2(b). A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
Duran objects to Judge Rau's conclusion that the warrantless entry into the McKnight Avenue apartment was lawful. Duran argues that the Government did not meet its burden of showing that Duran voluntarily consented to the officers' entrance. Specifically, Duran's objection focuses on the uncertainty of whether any of the four officers had their firearms drawn at the time Duran opened the apartment door in response to their knock.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "The Fourth Amendment's general prohibition against warrantless searches does not apply when officers obtain voluntary consent from the person whose property is searched or from a third party with common authority over the property." United States v. Esparza, 162 F.3d 978, 980 (8th Cir.1998) (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ). Voluntary consent does not need to rise to the level of waiver and can be voluntary without being an "intentional relinquishment or abandonment of a known right or privilege." United States v. Chaidez, 906 F.2d 377, 380 (8th Cir.1990) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ).
To assess whether consent was actually voluntary, courts are directed to examine the totality of the circumstances surrounding the consent, including the following relevant factors:
(1) the individual's age and mental ability; (2) whether the individual was intoxicated or under the influence of drugs; (3) whether the individual was informed of [her] Miranda rights; and (4) whether the individual was aware, through prior experience, of the protections that the legal system provides for suspected criminals. It is also important to consider the environment in which an individual's consent is obtained, including (1) the length of the detention; (2) whether the police used threats, physical intimidation, or punishment to extract consent; (3) whether the police made promises or misrepresentations; (4) whether the individual was in custody or under arrest when consent was given; (5) whether the consent was given in public or in a secluded location; and (6) whether the individual stood by silently or objected to the search.
United States v. Quintero, 648 F.3d 660, 667 (8th Cir.2011) (citation omitted) (citing United States v. Golinveaux, 611 F.3d 956, 959 (8th Cir.2010) ). The Government bears the burden of proving voluntary consent. United States v. Willie, 462 F.3d 892, 896 (8th Cir.2006).
Doran argues that he did not voluntarily consent to the officers' entrance into the McKnight Avenue apartment. Doran's objection emphasizes that four officers dressed in jackets with "POLICE" or "SHERIFF" were standing directly in front of the apartment door, and there is uncertainty whether any weapons were unholstered or visible. Setting aside whether or not any firearms were displayed, there is no evidence that the officers used threats or other means of intimidation to involuntarily extract Duran's consent. There is also no evidence to suggest that the officers acted in an aggressive, confrontational, or otherwise coercive manner to Duran at the apartment door. Commander Clark's question to Duran—"May we come...
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